JUDGMENT Hon’ble Shashi Kant Gupta, J.—This appeal has been preferred by the accused-appellants against the judgment and order dated 15.12.1982 passed by the Special Judge, Badaun in Sessions Trial No. 414 of 1981, under Sections 396/412 IPC, Police Station Dataganj, District Badaun whereby the accused appellants have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 396 IPC. 2. The present appeal was filed in the year 1983 against the impugned judgment dated 15.12.1982 and it has come up for hearing before us after lapse of almost a period of 33 years. 3. At the outset, it is pertinent to mention here that during the pendency of this appeal, the co-accused persons namely Ram Chandra and Dwarika, who filed the separate Criminal Appeal No. 3203 of 1982 have died. Accordingly, vide order dated 16.4.2016, this Court had abated the Criminal Appeal No. 3203 of 1982 as dismissed qua Ram Chandra and Dwarika. 4. Now, we are proceeding to consider the present Criminal Appeal No. 196 of 1983 in respect of the sole surviving appellant namely Chhotey Shah. 5. Factual scenario according to the prosecution is essentially as follows: An armed dacoity was committed in between the night of 15/16th December, 1980, at the house of P.W. 1-Lakhan in village Diyori within the jurisdiction of police station Dataganj. At the time of dacoity i.e. at about 00.30 hours, Lakhan (P.W.1) was sleeping inside his house. His father was sleeping in the Baithak. His wife and mother were sleeping at the verandah inside the house. His son Om Prakash (P.W.3) was sleeping in the Dehliz of the house and the lantern was glowing as usual in the inner verandah where two dacoits entered inside the house by scaling over the wall. On hearing the sound, the complainant (PW 1) woke up when he flashed his torch light, the dacoits caught hold of him. One of them opened the bolt of the front door which facilitated the entry of six more dacoits inside the house. The dacoits, who were about 10 or 11 in number started beating the female members of the house and tried to extract information about their valuables. One of the dacoits climbed on the roof through the stair case. He was armed with a gun. Another dacoit stood guard on the front door with gun. The dacoits, who were about 10 or 11 in number started beating the female members of the house and tried to extract information about their valuables. One of the dacoits climbed on the roof through the stair case. He was armed with a gun. Another dacoit stood guard on the front door with gun. The dacoits resorted to firing from the roof as well as from the front door. They also caught hold of the father of the complainant from his Baithak and brought him inside the house. Om Prakash (P.W. 3), the son of the complainant finding an opportunity escaped from his house and raised an alarm in the village. The dacoits started looting the property of the complainant and in the course of committing dacoity they were entering into and going out of the house. The residents of village assembled with torches and lathis and started pelting brick-bats on the dacoits. One of them namely Naubat (deceased) climbed over the roof of Dal Singh and started throwing brick bats at the dacoits. Whereupon the dacoit, who was on the roof of the house of the complainant, fired a shot at him killing him outright. Budhpal set fire to the Puwal (paddy straw) heaped there which produced a flood of light. After committing dacoity which lasted about 20-25 minutes, the dacoits fled away towards north. In the course of dacoity complainant’s mother Tirka, father of Malkhan and wife Dev Kuar received injuries. The residents of the village who had assembled at the time of dacoity included Ishwari (P.W. 2), Sarnam, Ram Chander, Budhpal, Sardar and Kanhai etc. Except Budhpal all of them were carrying torches and lathiss. It is claimed that in the light of torches, fire and lantern the witnesses succeeded in identifying the accused Ram Chander and Dwarika as they were the residents of the same village. The other dacoits were not known to them but it was claimed that the witnesses had noticed their facial image in the light. 6. After the retreat of the dacoits, the dead body of Naubat was brought down from the roof of Budhpal and was kept in front of complainant’s Baithak on a cot. The complainant could not proceed to the police station in the night out of fear. 6. After the retreat of the dacoits, the dead body of Naubat was brought down from the roof of Budhpal and was kept in front of complainant’s Baithak on a cot. The complainant could not proceed to the police station in the night out of fear. His son Om Prakash scribed the report (ext Ka 1) on his dictation and thereafter the complainant took it to the police station Dataganj where he lodged the report at 6.10 hours on the following morning. A list of looted articles including Radio, cash, ornaments, utensils and clothes was given alongwith the FIR. The looted utensils viz. Batuya, Thali, Lota and a Glass was allegedly recovered from the co-accused Jeetendra Pal Singh. 7. On the basis of the written report (Ext. Ka-1) a formal F.I.R. (Ext. Ka-14) was prepared by Azhar Husain head constable (P.W. 7) and a case under Section 396 I.P.C. was registered against the accused Ram Chander, Dwarika and 8-9 unknown persons vide G.D. (Ext. Ka.15). 8. Sri Soran Singh, S.O. Dataganj (P.W.8) started the investigation and he recorded the statement of the complainant at the police station and proceeded to the place of the occurrence where he made an inquest on the dead body of Naubat, prepared inquest report (Ext. Ka-9), photo of the dead body (Ext. Ka-7), challan (Ext. Ka.11), sample seal (Ext. Ka-10) and sent the dead body for post-mortem through constables Rameshwar Dayal and V.C. Shivlal. He recovered one Towel from the head of the dead body of Naubat and prepared its memo (Ext. Ka-18). He inspected the lantern of the complainant and torches of the witnesses in the light of which they claimed to have identified the dacoits and returned them in their supardagi vide memo (Ext. Ka-2). He prepared the site-plan (Ext. Ka-19) of the place of occurrence. He recovered nine empty cartridges (Ext. 4) from the roof of the complainant under a memo (Ext. Ka-20). He recovered blood stained earth from the roof of Budhpal and Dal Singh (Ext. 6 and 7) and unstained earth (Ext. 8 and 9), kept it in separate sealed container under a memo (Ext. Ka-21). He recovered ashes from the khandahar of Budhpal Singh, took its sample (Ext. 10) under a memo (Ext Ka 22). Three pairs of shoes (Ext. 11) and one cap (Ext. 6 and 7) and unstained earth (Ext. 8 and 9), kept it in separate sealed container under a memo (Ext. Ka-21). He recovered ashes from the khandahar of Budhpal Singh, took its sample (Ext. 10) under a memo (Ext Ka 22). Three pairs of shoes (Ext. 11) and one cap (Ext. 12) left behind by the dacoits were also recovered by him from the house of the complainant under a memo (Ext. Ka-23). 9. On a tip off by a Mukhbir Khas 14.1.1981 the S.O. Proceeded from the police station, collected witnesses Sita Ram (P.W. 4) and Radhey Shiam (P.W.5) from the bus stand and reached the out-skirts of village Gangola near Dharamshala where he found accused Jitendra Pal Singh, sitting on the foot-path. The accused tried to run away but he was chased by the police men and the witnesses and was apprehended at a short distance of 50 paces on the main road. It is alleged that one bundle containing Thali (Ext 1), Gilas (Ext. 2) and Lota (Ext. 3) were recovered from his possession. It was suspected to be the property looted in the course of dacoity in question. It was, therefore, seized by the S.O. under a memo (Ext. Ka 12) and sealed at the spot. The S.O. prepared the site plan (Ext. Ka-24) of the place of recovery. He sent a report for identification of the recovered property. The identification was held on 27.3.1981 wherein the complainant and his family members identified (Ext. 1 to 3) as belonging to them which was looted in the course of the same dacoity. 10. Accused Dwarika was arrested on 19.1.1981 by S.I. Din Dayal Saroj. Accused Ram Chander surrendered in Court. 11. Accused Chhotey surrendered in Court on 7.2.1981. The I.O. sent a report on 23.2.1981 for keeping him bapurda He was put to test identification in Budaun jail on 27.3.1981 wherein he was correctly identified by all the six witnesses. 12. After necessary investigation the Investigating Officer submitted charge-sheet (Ext. Ka-25) against all the four accused persons under Sections 396 and 412 I.P.C. As the case was exclusively triable by the Court of Sessions the learned Magistrate committed the case to the Court of Session. 13. 12. After necessary investigation the Investigating Officer submitted charge-sheet (Ext. Ka-25) against all the four accused persons under Sections 396 and 412 I.P.C. As the case was exclusively triable by the Court of Sessions the learned Magistrate committed the case to the Court of Session. 13. The accused were all charged of the offence under Section 396 I.P.C. Co-accused Jitendra Pal Singh was charged alternatively for the offence punishable under Section 412 I.P.C. The accused pleaded not guilty to the charges framed against them. They denied their participation in the offence and attributed their prosecution to enmity. According to co-accused Ram Chander and Dwarika who were named in the F.I.R., they had enmity with the complainant and the prosecution witnesses on the issue of fishing from the tank. Proceedings were also drawn under Sections 107/117 Cr. P. C. between them on account of that dispute. They have filed certified copy of the chalani report under Section 107 Cr. P. C. (Ext. Kha-1 and kha-2) in their defence. 14. Accused Chhote Shah has pleaded that he has been falsely implicated due to village rivalry. He had surrendered in the Court of Judicial Magistrate in an another case under Section 25 Arms Act. He used to come to the Court without Parda and was shown to the prosecution witnesses by the police on 27.2.1981. The accused has filed a certified copy of the order sheet of the case against him under Section 25 Arms Act (Ext. Kha-3) and has examined Liakat (D.W. 1) to show that he was known to the prosecution witnesses from before. 15. Accused Jitendra Pal Singh has claimed that the property recovered from him was his. He was not arrested on the road but the property was recovered from his house falsely showing it to be the looted property of the complainant due to his enmity with Soran Singh, S.I., who harboured ill will against him because his (Jeetendra Pal Singh) brother Sukhpal was acquitted in a case wherein he was falsely implicated in a murder case under the pressure of the village’s carpenters. The accused has examined Suleman (D.W. 2) in proof of his allegation that recovery of (Ext. 1 to 3) was effected by the S.I. from house search. 16. The prosecution produced in all 8 witnesses in the Court. The accused has examined Suleman (D.W. 2) in proof of his allegation that recovery of (Ext. 1 to 3) was effected by the S.I. from house search. 16. The prosecution produced in all 8 witnesses in the Court. Of these Lakhan (P.W. 1), Ishwari (P.W. 2) and Om Prakash (P.W. 3) are the witnesses of fact. They claimed to have identified the accused Ram Chandra and Dwarika during the course of dacoity and also identified the accused Chhotey Shah in jail. 17. Sita Ram (P.W. 4) and Radhey Shiam (P.W. 5) are witnesses of the alleged recovery of (Ext. 1 to 3) from the possession of accused Jitendra Pal Singh on 14.1.1981. 18. Dr. A.K. Malpani (P.W.6) conducted post-mortem of deceased Naubat on 17.12.1980. He has proved (Ext. Ka-13) as post-mortem report prepared by him. 19. Azhar Husain (P.W.7) is head constable of police station Dataganj who has proved the F.I.R. (Ext. Ka-14) prepared on the basis of the written report (Ext. Ka-1) and the G.D. entry (Ext. Ka-15). He has also proved G.D. (Ext. Ka 16) dated 14.1.1981 on the arrest of accused Jitendra. Exhibit Ka-17 was proved being the G.D. entry of 19.1.1981 made at 18.05 hours in respect of the arrest of accused Dwarika. 20. Soran Singh (P.W. 8) is S.O. Dataganj who investigated the case. He has proved (Ext. Ka-7 to Ka-11) as the documents prepared by him on the inquest of deceased Naubat. Exhibit Ka-12 has been proved to be the recovery memo of (Ext. 1 to 3) from the possession of accused Jitendra. Exhibit Ka-18, Ka-20 to Ka-24 have been proved to be Fards of the various articles recovered by him from the spot of the occurrence. Exhibit Ka-19-site plan was proved and prepared by him of the place of occurrence and Ext. 24 is the site-plan prepared by him of the place of recovery from accused Jitendra. Exhibit Ka-25 has been proved to be the charge-sheet submitted by him against the accused persons. Exhibit Ka-27 is the report dated 23.2.1981 sent by him for keeping accused Chhotey bapurda. 21. The genuineness of the injury reports of Smt. Kitka (Ext. Ka-3), Smt. Dev Kumar (Ext. Ka-4) and Malkhan (Ext. Ka-5) has been admitted by the learned counsel for the accused. The genuineness of the post-mortem report of Naubat (Ext. Ka-6) has also been admitted by the learned defence counsel. 21. The genuineness of the injury reports of Smt. Kitka (Ext. Ka-3), Smt. Dev Kumar (Ext. Ka-4) and Malkhan (Ext. Ka-5) has been admitted by the learned counsel for the accused. The genuineness of the post-mortem report of Naubat (Ext. Ka-6) has also been admitted by the learned defence counsel. The genuineness of the identification memo of the recovered property (Ext. Ka-13) and the genuineness of the identification memo of accused Chhotey (Ext. Ka-26) has also been admitted by the learned counsel for the accused. 22. The Trial Court after hearing the learned counsel for the parties and going through the record found that the prosecution has fully succeeded in bringing home the charges against the appellants beyond reasonable doubt and vide impugned judgment and order dated 15.12.1982 convicted and sentenced the accused appellants, hence the present appeal. 23. Mr. Mohd. Waseem, learned counsel for the appellant has submitted that the appellant namely Chhotey Shah had surrendered before the Court below on 6.2.1981 in an another case under Section 25 Arms Act. He further submitted that the alleged incident had occurred on 15/16.12.1980 at about 00.30 hours and the appellant Chhotey Shah surrendered before the Court below on 6.2.1981 but the test identification parade was conducted on 27.3.1981, as such, there was an inordinate delay in conducting the test identification parade. It was further submitted that the appellant was neither named in the First Information Report nor any recovery whatsoever was made from his possession. It was further submitted that the appellant was known earlier to the informant side as his maternal aunt (Mausi) was residing in the village in question and he used to visit the village quite often. In support of his submission, he has placed reliance upon the testimony of the D.W. 1 Liyaqat. He further submitted that the alleged recovery was made from the co-accused namely Jeetendra Pal Singh who was acquitted from all the charges levelled against him including under Section 412 IPC by the impugned judgment as the recovery was found by the trial to be false. It was further submitted that the incident had occurred in the pitch dark winter night of 15/16.12.1980 and despite the fact that there was no sufficient light, the witnesses claim to have identified the accused persons from a distance. It was further submitted that the incident had occurred in the pitch dark winter night of 15/16.12.1980 and despite the fact that there was no sufficient light, the witnesses claim to have identified the accused persons from a distance. It was further submitted that the informant namely Lakhan despite being the head of the family did not suffer any injury while the other family members including old father, daughter and wife suffered several injuries. He further submitted that the site plan was prepared by the Investigating Officer on his own as the informant and other witnesses have specifically stated that the site plan was not prepared in their presence or under their instructions. It was further submitted that the site plan does not mention the place where the P.W.2 -Ishwari had hidden himself and witnessed the incident. Neither any brick bats, which were alleged to have been pelted by the villagers at the accused persons, were recovered from the spot nor any Fard of it was prepared. It was further submitted that the appellant had surrendered himself before the Court below on 6.2.1981 in connection with some other case under Section 25 Arms Act and thereafter during the course of remand he was produced before the Judicial Magistrate and was shown to the witnesses, as such, the test identification was nothing but a farce. In the test identification parade he was identified by all the six witnesses. He further submitted that brick bats were allegedly pelted the deceased Naubat from the terrace of Dal Singh but the alleged body was recovered from the terrace of Budhpal and no explanation has been given by the prosecution as to how the blood was found from the two terraces although they did not form one continuous space. He further submitted that in order to show that there was sufficient light, the prosecution has set up a story that in the Khandahar of Budhpal Singh situated around 20-30 paces away from the place of incident, they set fire to Puwal (paddy straw) which produced a flood of light enabling them to identify the dacoits, who were standing on the terrace of the house in question. He further submitted that the appellant has been implicated falsely due to village party bandi. He further submitted that the appellant has been implicated falsely due to village party bandi. He further submitted that the prosecution has failed to show the starting point as to how they could able to know that the appellant was involved in the commission of the present offence. 24. Per contra, Shri Ram Yash Pandey, learned AGA appearing on behalf of the State has supported the impugned judgment and submitted that the Court below has given a cogent, convincing and satisfactory reasons while convicting the appellant. He further submitted that the appellant has been identified by all the witnesses and the name of the appellant Chhotey Shah came into light in the confessional statement of the co-accused Jeetendra Pal Singh from whom the alleged recovery was made. 25. Heard Mohd. Waseem, learned counsel for the appellant, Shri Ram Yash Pandey, learned AGA appearing on behalf of the State and perused the material available on record. 26. The Court below by impugned judgment dated 21.12.1982 has convicted the appellants Chhotey Shah, Ram Chandra and Dwarika under Section 396 IPC, however the co-accused Jeetendra Pal Singh from whose possession the recovery was made, has been acquitted from the charges under Section 396 IPC as well as under Section 412 IPC, as such, the alleged recovery of some utensils from his possession was found to be false and fabricated and as such his (Jeetendra Pal Singh) confessional statement disclosing the name of the appellant also falls to the ground. 27. The incident is said to have been occurred in the midnight of 15/16.12.1980. Admittedly the appellant Chhotey Shah was not named in the First Information Report, however other co-accused namely Ram Chandra and Dwarika were specifically named in the FIR as they belong to the same village Diyori, where the incident had occurred. In the said incident, one Naubat Ram, who belongs to the same village died and three inmates also suffered injuries, however the informant, the head of the family, did not receive even a scratch during the course of dacoity. 28. The incident had occurred in the mid night of 15/16.12.1980 and the appellant Chhotey Shah surrendered before the Court below on 6.2.1981 and yet the test identification parade was conducted on 27.3.1981. 29. 28. The incident had occurred in the mid night of 15/16.12.1980 and the appellant Chhotey Shah surrendered before the Court below on 6.2.1981 and yet the test identification parade was conducted on 27.3.1981. 29. According to the prosecution story, one lantern was burning inside the house at the time when the dacoity was committed and the informant and other witnesses could able to see the miscreants in the light of torch as well in the light produced by the fire set to Puwal (paddy straw). 30. Now the question remains to be determined as to whether the light available on the spot was sufficient to identify the accused persons including the appellant as the dacoity was committed in the pitch dark winter night of 15/16.12.1980. It must also be borne in mind that in the year 1980 there was no concept of global warming and mid December month used to very cold. There were three sources of light set out by the prosecution. One was the light of lantern hanging inside the house in the verandah. Another was the light that emanated from the Puwal (paddy straw), when it was set on fire at the Khandahar of Budhpal during the course of dacoity and the third source of the light was the torches flashed by the villagers. The material available on record shows that around 10-12 dacoits had barged in to the house of the informant to commit dacoity and as soon as the dacoits entered into his house, he took out his torch and flashed the torch light at them. No enquiry was made as to whether the alleged light available on the spot was sufficient to enable the witnesses to identify the dacoits from a distance. 31. It is worth noting at this stage that the informant and the inmates of the house must be terrified and intimidated after seeing so many dacoits raiding the house and therefore would not have been in proper frame of mind at the relevant time to flash torch light at the accused persons, who were around 10-12 in number. It may also be noted that charge-sheet was filed only against five persons and three out of them were shown to be the resident of the village in question. It may also be noted that charge-sheet was filed only against five persons and three out of them were shown to be the resident of the village in question. Co-accused Ram Chandra and Dwarika, who belong to the same village where the dacoity was committed admittedly had enmity with the informant side as Criminal case under Sections 107/117 Cr.P.C was pending between them. In these circumstances, it was highly improbable that the residents of the same village without concealing their identity or covering their faces would commit dacoity in the house of the informant and the same analogy goes with the appellant Chhotey Shah also, who was also the resident of the adjoining village and according to D.W. 1-Liyaqat, he, being a wrestler (Pahalwan), used to visit the village in question quite frequently to participate in the Dangal organized in the village in question. 32. It may also be noted that there are material contradictions and inconsistencies in the evidence of the alleged eye-witnesses with regard to the fact whether the accused persons were covering their faces or not. According to P.W. 1-Lakhan Ram, during the course of dacoity, dhatas of dacoits had opened automatically one after the other, however other witnesses P.W. 2 and P.W. 3 have specifically stated that none of them were concealing their identity or covering their faces, therefore, in the present circumstances it is most improbable that the accused persons would not have been covering their faces during the course of dacoity. 33. The story set up by the prosecution that the heap of Puwal was set on fire, does not inspire us. If at all the Puwal was set on fire, the question is as to how long had it lasted and whether the light produced by it was sufficient to enable the witnesses to recognize the dacoits from such a long distance. Thus, we are of the view that since the alleged dacoity was committed in the pitch dark winter night in the month of December and in view of the evidence on record the light available during occurrence was not sufficient for the identification of the real culprits. 34. There is one another important aspect which goes to the root of the matter. The incident had occurred on 15/16.12.1980 and the test identification parade was conducted on 27.3.1981. 34. There is one another important aspect which goes to the root of the matter. The incident had occurred on 15/16.12.1980 and the test identification parade was conducted on 27.3.1981. Thus the test identification parade was conducted nearly after 100 days from the date of incident and 51 days from the date of surrender as the appellant had surrendered on 6.2.1981 before the Court. Holding identification parade after lapse of such a long time creates doubt. No justification has been given by the prosecution for such an inordinate delay.It is difficult to conceive that after such a long time the witnesses would be remembering facial image and profile of the accused persons. In this regard, we are fortified by the decision of the Apex Court in the cases of Iqbal v. State of U.P., (2015) 6 SCC 623 , Budh Sen v. State of U.P., (1970) 2 SCC 128 , Soni v. State of U.P., (1982) 3 SCC 368 and Subhash and Shiv Shankar v. State of U.P., (1987) 3 SCC 331 . 35. The test identification report also indicates that all the six persons, who were called for identification had identified the appellant. Thus there was 100% identification. This also creates suspicion about the veracity of the prosecution story. It is difficult to comprehend as to how all the six witnesses would correctly identify the appellant who had allegedly seen him in the pitch dark winter night from a distance after more than three months. 36. At this stage, it would also be relevant to refer to the testimony of the P.W. 8 Soran Singh, the Investigating Officer. According to him, the site plan was prepared in the presence of the informant and the witnesses. In the present case only three witnesses of fact have been produced before the Court below i.e. P.W. 1-Lakhan Ram (informant), P.W. 2-Ishwari (one of the villager) and P.W. 3-Om Prakash (son of the informant). All these three witnesses have categorically stated that the site plan was not prepared in their presence, as such, their deposition completely belied the evidence of the P.W.8-Investigating Officer that it was prepared in the presence of the P.W 1, P.W. 2 and P.W. 3. Perusal of the statement of the P.W. 8 Investigating Officer further shows that it suffers from a number of deficiencies. Perusal of the statement of the P.W. 8 Investigating Officer further shows that it suffers from a number of deficiencies. The brick bats, which were pelted by the villagers at the house of the informant has not been shown in the site plan nor any Fard of the said brick bats have been prepared. The report of the Forensic Lab has not been placed with regard to the blood which was collected from the terrace of Budhpal and Dal Singh. No effort was made to connect three pairs of shoes and cap, which were allegedly recovered from the spot. In this reference, the extract of the statement of P.W. 8 is quoted herein below : ^^11- oknh o xokgku dh fu'kkunsgh ij eSaus ekSdk eqvkbuk fd;k FkkA tgkWa ls xokgku us ?kVuk ns[kh og txg uD'kk esa ugha fn[kkbZ gSA bZ'ojh ds c;ku esa ugha fy[kk gS fd mlus ogkWa [kMs gksdj ?kVuk ns[khA eSaus oknh ds ?kj esa ykyVsu [kqn Vaxh ugha ns[kh A cfYd ¼1½ LFkku ij xokgku us ykyVsu dk tyuk crk;k FkkA oknh ds edku ds nfD[ku rjQ okys dejks esa ykyVsu dk gksuk ugha ekywe iM+kA 12- uD'ks esa vkse izdk'k ds lksus dk LFkku ugha fn[kk;k gS u ;g fn[kk;k gS fd mlus ?kVuk ogkWa ls ns[khA yk[ku us ?kVuk ds le; ?kj esa gksuk crk;k uD'kk esa ugha fn[kk;k gSA xokgku yk[ku] bZ'ojh o vkse izdk'k us eqyteku jke pUnz o }kjdk ds gkFk esa reapk o cUnwd gksus dh ckr ugha crkbZA 15- uD'ks esa lqyseku dk edku ugha fn[kk;kA u fdlh edku ds Njjs ds fu'kku ik;sA ;g xyr gS fd lqyseku dk edku o mlesa yxs Njjs eqdnesa dh ?kVuk LFky ls esy ugha [kkrs Fks blfy, mudks uD’ks esa u fn[kk;k gksA** 37. In Paragraph 18 of his testimony P.W. 1 Lakhan Ram has categorically stated that the site plan was not prepared in his presence. The said paragraph 18 is quoted herein below : ^^18- ;g eSaus ugha ns[kk fd xokgku us dgkWa ls ?kVuk ns[khA esjs lkeus njksxk th dks fdlh us ugha crk;k fd ogka ls ?kVuk ns[kh esjs lkeus njksxk th us uD'kk ugha cuk;kA ;g xyr gS fd ?kVuk ds le; dksbZ vkx ;k ykyVsu ugha ty jgh gks o njksxk th us vkx o ykyVsu cuk nh gksA 38. It is also notable that Rohan Lal and Suleman witnesses of Ext. It is also notable that Rohan Lal and Suleman witnesses of Ext. Ka 18 Ext. ka 20-empty cartridge of tikli, Ext. Ka 21-Blood stained soil, Ext. Ka 22-Ashes of burnt Puwal and Ext. Ka 23-Shoes and cap were not produced before the Trial Court to prove the aforesaid recovery from the spot. It was also not explained as to how the P.W. 1 Lakhan who was in the ground floor of his house could able to see or recognize the appellant who was alleged to be present on the terrace. It also appears to be very improbable that dacoits would intimidate and cause injuries to the family members of the informant alone in order to extract information about the valuables and would spare the informant (who was the head of the family) and not cause even a scratch upon his body although he allegedly remained in the house during the course of the alleged dacoity. 39. The testimony of P.W. 2 also appears to be concocted. P.W. 2 tried to implicate the co-accused Jeetendra Pal Singh, who was also the resident of the same village and from whom the false recovery was made by the police. According to the P.W. 2 Jeetendra Pal Singh was also involved in committing dacoity and despite the fact that he knew him from before neither his name was mentioned in the FIR nor in the statement of P.W. 2 recorded under Section 161 Cr.P.C. False recovery was shown from the possession of the co-accused Jeetendra Pal Singh. As a result, the Court below disbelieved the factum of recovery and recorded a categorical finding that the co-accused Jeetendra Pal Singh was not at all involved in the commission of the offence. The relevant paragraphs 41 to 46 of the impugned judgment are quoted herein below : “41. Accused Jeetendra Pal Singh is resident of the same village Diyori where the dacoity took place. He is not named in the FIR. Ishwari (PW2) has stated that he saw him amongst the dacoits but no other witness has corroborated him. Even Ishwari (PW 2) did not name him in his statement under Section 161 Cr.P.C., hence it cannot be concluded that any prosecution witness could identify him amongst the dacoits at the time of dacoity. 42. The only evidence against the accused is that of recovery of one Thali (Ext.1), one Gilas (Ext. Even Ishwari (PW 2) did not name him in his statement under Section 161 Cr.P.C., hence it cannot be concluded that any prosecution witness could identify him amongst the dacoits at the time of dacoity. 42. The only evidence against the accused is that of recovery of one Thali (Ext.1), one Gilas (Ext. 2) and one Lota (3) which is alleged to be looted property, the possession of which was transferred through the commission of this dacoity. The recovery is alleged to have been made by the investigating officer on 14.1.1981 ie after about a month of the dacoity. According to the investigating officer (Soron Singh P.W. 8) the accused was apprehended by him in the outskirts of village Gangola on the mettled road near the Dharmshala at about 3.45 PM of 14.1.1981 when the recovery of (Ext. 1 to 3) was made from his possession in the presence of Sita Ram (PW 4) and Radhey Shiam (P.W. 5). 43. The accused does not deny the recovery of (Ext 1 to 3) from his possession. But according to him this recovery was made by the Investigating Officer from his house by house search. Suleman (D.W. 2) has been produced in support of the defence plea that the recovery was made by the S.O from the house search of the accused. 44. Whatever might have been the mode of the recovery of (Ext. 1 to 3), it remains admitted on the part of the accused as well the ext. 1 to 3 belong to him and these were recovered from his possession by the investigating officer. 45. It has only to be seen if (Ext. 1 to 3) were stolen property having been stolen in the course of this dacoity. In the FIR (Ext Ka-1) at serial numbers 20,21 and 22 one Lota, one Thali and Gilas are included in the list of the stolen property alongwith their weight and value. No other description has been given. According to the complainant as well as the Investigating Officer, no other description of the stolen property was given by the witnesses in the course of his statement under Section 161 Cr.P.C. But both Lakhan (PW 1) and Om Prakash (PW 3) identified (Ext. 1 to 3) as theirs in the course of the identification proceedings held on 27.3.1981 helf by Shri V.P. Singh, Executive Magistrate. The genuineness of the identification memo (Ext. 1 to 3) as theirs in the course of the identification proceedings held on 27.3.1981 helf by Shri V.P. Singh, Executive Magistrate. The genuineness of the identification memo (Ext. Ka 13) has been admitted by the learned counsel for the accused. 46. It is also admitted by all the prosecution witnesses as well as by the Investigating Officer tht utensils of the type of (Ext. 1 to 3) are very common which can be found in most of the houses. It is also admitted by the complainant as well as his son Om Prakash that there was no distinguishable mark on any of these utensils which are in common use of every house. Under these circumstances it cannot be definitely held with all certainty that (Ext. 1 to 3) were stolen property looted in the course of this dacoity. These are minimum requirements of a house hold. It is not at all surprising if these minimum requirements were recovered from the possession of the accused either from his house as alleged by the accused or on the road as alleged by the prosecution. There is also nothing to show that accused Jitendra retained this property knowing or having reason to believe the same to be stolen property the possession of which was transferred through the commission of dacoity. Accused Jitendra, therefore, cannot be held guilty of the offence under Section 412 Cr.P.C also and he deserves his acquittal.” 40. It is further submitted that the Investigating Officer of the case has completely failed to show as to how and on what basis he has picked up the accused appellant in the present case. It is also notable that Jeetendra Pal Singh from whom the alleged recovery was shown and had disclosed the name of the appellant has been acquitted by the Court below while recording a categorical finding that the alleged recovery made from him was false and fabricated. In view of the above, the story set up by the prosecution that the name of the appellant was disclosed by the co-accused Jeetendra Pal Singh falls to the ground. 41. In the case of Iqbal v. State of U.P. (Supra), the Apex Court in paragraphs 5, 11, 15 and 16 has held as follows: “5. In view of the above, the story set up by the prosecution that the name of the appellant was disclosed by the co-accused Jeetendra Pal Singh falls to the ground. 41. In the case of Iqbal v. State of U.P. (Supra), the Apex Court in paragraphs 5, 11, 15 and 16 has held as follows: “5. Learned counsel for the appellants contended that at the time of incident, it was pitch dark and it would have been highly improbable for the witnesses to identify the dacoits with flash of torches. It was further submitted that PW1-Patia Singh had given an exhaustive list of more than fifty valuable items which had been stolen, but except three kilograms of ghee in a clay pot, nothing was recovered from the appellants and in the absence of substantive evidence corroborating the identification, the Courts below ought not to have convicted the appellants. It was also submitted that the appellants have no criminal antecedents to commit such heinous crime. 38. 11. In our considered view, it is unbelievable that on a new moon night when it was pitch dark, the witnesses who were frightened and who were hiding themselves behind the walls in order to save themselves, could have seen actual faces of the accused persons just by flash of torch lights on their faces and in the light of lantern. Further, there were about 14-15 dacoits in number, all armed with deadly weapons and were continuously making ingress and egress in the house of the deceased, it becomes inconceivable as to how the witnesses standing at a distance in a feeble light would have been able to identify the dacoits. 15. Evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence. 16. It is pertinent to note that in the present case no recovery of articles which are the subject of dacoity was made from the appellants or other non-appealing accused persons. 16. It is pertinent to note that in the present case no recovery of articles which are the subject of dacoity was made from the appellants or other non-appealing accused persons. In his complaint, PW1 gave a list enumerating fifty expensive items, such as gold jewellery, silver articles, sarees and clothes and also cash. As per the recovery memo, what was recovered was just three kilograms of ghee in a clay pot. In his deposition, PW8-Nepal Singh (investigating officer) has stated that at the instance of Kripa, he had recovered a ‘’chaptaghu’ and an ‘’attire’. However, in the recovery memo, only three kilogram of ghee is mentioned which is said to have been recovered on the disclosure statement of accused Kripa. From the appellants as well as from the non -appealing accused persons, not a single item of valuable out of the whole list of stolen articles was recovered. It is quite unbelievable that within a short span of time i.e. from 21.9.1979 (date of incident) to 9.10.1979 (date of arrest), the accused would have converted or sold out all the valuable items. Even if we accept that they had done so, the prosecution ought to have adduced evidence as to how and in what manner the articles which were the subject-matter of dacoity were either disposed of or converted. Murder and robbery were part of the same transaction. Consequent upon the disclosure statement, only three kilograms of ghee was recovered.” 42. In the present case also no recovery whatsoever has been made from the possession of the appellant and in fact there was no starting point giving any clue to the Investigating Officer to show the complicity of the appellant in the commission of the alleged offence. In the present case also the alleged incident had occurred in the pitch dark winter night and the witnesses P.W. 2 and P.W. 3 were standing quite far away from the place of occurrence and it becomes inconceivable as to how they would have identified the dacoits in a feeble light. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence. In view of the evidence on the record, it is apparent that available light during occurrence was insufficient for the identification of real culprits. 43. The test identification parade was conducted after more than three months and no explanation has been offered with regard to such inordinate delay. In the circumstances, there were chances that the accused appellant was shown to the identifying witnesses prior to identification parade and during pendency of the trial. The natural possibility of gathering false impressions of the accused appellant by the identifying witnesses after such a long gap cannot be ruled out. No serious effort was made by the Investigating Officer to recover the looted property except few utensils from the co-accused Jeetendra Pal Singh, which too was held by the Court below to be false and fabricated while acquitting the co-accused Jeetendra Pal Singh. 44. In the above context it will be useful to refer to a decision of the Apex Court in the case of Soni v. State of U.P. (Supra) wherein in paragraph 2 it was held as follows : “After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We therefore allow the appeal and acquit the appellant. “ 45. In this connection it will be fruitful to notice the observation made by the Apex Court in the case of Subhash and Shiv Shankar v. State of U.P. (Supra) in paragraphs 8 and 9 which reads as follows : “8. We therefore allow the appeal and acquit the appellant. “ 45. In this connection it will be fruitful to notice the observation made by the Apex Court in the case of Subhash and Shiv Shankar v. State of U.P. (Supra) in paragraphs 8 and 9 which reads as follows : “8. Apart from this infirmity we further find that Shiv Shankar was not put up for test Identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features. 9. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha I nor in their statements during investigation, the eye-witnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had ‘sallow’ complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification, parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Exhibit Kha 1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. Thus in the absence of any descriptive particulars of Shiv Shankar in Exhibit Kha 1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthu Swami v. State of Madras, AIR 1954 SC 4 , where an identification parade is held about 2-1/2 months after the occurrence it would not be safe to place reliance on the identification of the accused by the eye-witnesses. In another case Mohd. Abdul Hafeez v. State of Andhra Pradesh, AIR 1983 SC 361 , it was held that where the witnesses had not given any description of the accused in the First Information Report, their identification of the accused at the Sessions trial cannot be safely accepted by the Court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade.” 46. Thus, in the aforesaid case, the Apex Court while considering the inordinate delay in holding the identification parade observed that “there is room for doubt as to whether delay in holding the test identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features.” In the present case also a sufficiently long interval of time (nearly 100 days) had elapsed between the date of occurrence and the date of test identification parade. In the present case also neither in the FIR nor in the statements recorded during the investigation the alleged witnesses had given any particulars of the appellant. It is also notable that none of the injured namly Tirka, Malkhan and Dev Kumari, mother, father and wife respectively of the complainant have been produced before the Court below for recording their testimonies. The Doctor who allegedly examined the injuries of the aforesaid persons was not also produced. It is also notable that none of the injured namly Tirka, Malkhan and Dev Kumari, mother, father and wife respectively of the complainant have been produced before the Court below for recording their testimonies. The Doctor who allegedly examined the injuries of the aforesaid persons was not also produced. Non examination of the material witnesses to prove the injuries of the injured persons creates suspicion in the prosecution story. 47. The prosecution case in this appeal would be hit by 3 aspects; (i) No recovery of articles allegedly looted in the commission of the alleged dacoity; (ii) The evidence of police officials do not indicate whether they had even tried to recover the same; (iii) This appeal requires to be allowed as there is no cogent material on record to show as to how the suspicion of the Investigating officer had fallen on the present appellant. Prosecution story with regard to the recovery of utensils from the possession of the co-accused Jeetendra Pal Singh has been found by the Court below to be false, therefore, disclosure of the name of the appellant by him falls flat on the ground. The main aspect on which the conviction is based also is faulty. The conviction based only on the basis of test identification parade cannot be sustained. The decision in the case of Ram Babu v. State of U.P., (2010) 5 SCC 63 , relied by the learned A.G.A. will be of no avail in the fact of this case as in the case of Nirmal Pasi v. State of Bihar, 2002 (6) JT 28 , Budhsen v. State of U.P. and others, AIR 1970 SC 1321 and that of State of Maharashra v. Sukhdeo Singh, AIR 1992 SC 2100 , will enure for the benefit of the accused as the test identification parade took place after a long time and the corroboration is also not justified in view of the insufficient light during the occurrence. Therefore, the appellant could not have been convicted on the basis of the identification made by the witnesses. The standard of proof required for convicting an accused under Section 396 IPC as laid down in the case of Iqbal (supra) are absent in this case hence this appeal will have to succeed. 48. We are fortified in our opinion by the judgment discussed herein above, we hold that there was no starting point. The standard of proof required for convicting an accused under Section 396 IPC as laid down in the case of Iqbal (supra) are absent in this case hence this appeal will have to succeed. 48. We are fortified in our opinion by the judgment discussed herein above, we hold that there was no starting point. The test identification parade is the sole basis, on which the learned Judge has convicted the accused which is bad in the eye of law. The non-recovery of any incriminating article has also not been considered by the learned Trial Judge which would also prove fatal to the prosecution in view of the latest decision by the Supreme Court in Iqbal and another (supra) hence on all these three counts the conviction of the appellant cannot be sustained. 49. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the accused-appellant - Chhotey Shah is palpably wrong and the findings recorded by the Court below are perverse, erroneous and cannot stand the scrutiny of law. In our considered opinion, the reasons given by the Trial Court are not sufficient to convict the accused-appellant Chhotey Shah. 50. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the accused-appellant-Chhotey Shah is entitled to benefit of doubt and acquittal. 51. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the accused-appellant namely Chhotey Shah cannot be sustained and is liable to be set-aside and in the circumstances of the case, the accused-appellant Chhotey Shah deserves acquittal. 52. In the result, we find and hold that the present appeal has got merit and the appeal is allowed. The impugned judgment and order dated 15.12.1982 passed by Special Judge, Badaun, in Sessions Trial No. 414 of 1981 is set-aside and the appellant namely Chhotey Shah is acquitted of the charges levelled against him and his conviction and sentence are hereby quashed and set-aside. The appellant namely Chhotey Shah is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 53. The appellant namely Chhotey Shah is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 53. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance. ——————